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Court Discusses Whether Plaintiff Sufficiently Stated a Cause of Action

Prior to the incident, infant plaintiff’s father was known to the defendant’s police officers at the 43rd Precinct, having previously been arrested by them approximately six times for drunkenness, abusive and physical assault upon his family. In July, 1975 he assaulted his wife with a knife, inflicting lacerations which required suturing at the Hospital; a New York Family Lawyer said that she thereafter brought a divorce action, which resulted in further violence by the infant plaintiff’s father and threats by him that he would kill her and the children if she proceeded with the divorce action. A Bronx Order of Protection Lawyer said that, the infant’s mother thereupon went into the Family Court where, she obtained a preliminary order of protection against her husband; thereafter, the order was finalized for one year and, over her strenuous objections, was amended to grant to the father visitation with the infant plaintiff from 10:00 A.M. on Saturdays to 6:00 P.M. on Sundays. After the parties left the courtroom the father attempted to assault his wife and he had to be restrained by a court officer. The Family Court judge was informed of the incident and thereupon directed the court officer to get him out of the building; however, the judge did not rescind his week-end visitation with the infant.
A Bronx Order of Protection Lawyer said that, in accordance with the provisions of the Family Court Act, a “Certificate of Order of Protection” was duly issued to the infant’s mother by the clerk of that court on November 6, 1975 certifying that an Order of Protection had been issued to her, pursuant to which the infant’s father was forbidden to assault, menace, harass, endanger, threaten or act in a disorderly manner toward petitioner and he is to remain away from the home of said petitioner.”

A New York Custody Lawyer said two days later, the infant’s mother took the infant to the 43rd Precinct to accord the infant’s father his week-end visitation. He took the infant and, as he was walking away, he made a death threat against his wife, and the infant, and he indicated to his wife that before the week-end was up she would be making “the sign of the cross” which to them meant that there would be a death. The mother immediately went into the precinct and told the desk officer of the death threats to herself and the infant; she showed the desk officer the Certificate of Order of Protection; she advised him of her fears and told him that she was frightened for the safety of her child and herself and that the Order of Protection protected her from such threats and she requested the police to take her husband into custody for violating said order. However, the police refused to do anything whatsoever. The infant’s father failed to return the infant at 6:00 P.M., as required by the Order of Protection. The mother again went into the station house and she again spoke to the police officer and the lieutenant she again demanded that the police arrest her husband for violating the order and protect the infant; once again the police refused to do anything whatsoever and told her to wait a couple of hours and that “perhaps” the father had taken the infant to a movie. Thereafter, the infant father’s sister entered his apartment. She found him lying on the floor with an empty whiskey bottle and an empty pill bottle lying beside him. She also found the infant, who had been viciously attacked, mutilated and severely injured by her father and she telephoned the police. The father had attacked the infant at about 7:00 P.M. with a fork, a knife and screwdriver; he had attempted to saw her leg off with a saw; she had been slashed from head to toe and she had sustained severe multiple internal injuries. Minutes later police officers from the same 43rd Precinct arrived and they rushed the infant to the Hospital in their police car, without waiting for an ambulance; the infant was immediately taken into surgery and she was operated. The infant was in a coma for several days and she remained in a critical condition for approximately three weeks and was hospitalized until December 19, 1975 she remains severely and permanently disabled. The father was arrested after the attack on the infant and he was thereafter indicted by the Grand Jury, tried and found guilty of attempted murder of the infant and he is now serving a jail sentence for the crime.

A Nassau County Family Lawyer said that, the mother filed a negligence action on behalf of the infant plaintiff, against the Defendant City to recover damages resulting from the multiple, mutilating and disfiguring injuries inflicted on her by her father when she was 6 years old. Derivative actions for resultant loss of services and damages are also brought by the infant’s mother. The basis for the claims is the alleged negligence of the defendant City, in failing to protect the infant and in failing to arrest the infant plaintiff’s father and take him into custody for violating a final order of protection issued to the infant’s mother by The Family Court of the State of New York, City of New York, County of the Bronx. The defendant, contending that the aforesaid Family Court order was issued to and limited solely for the protection of the mother, moves to dismiss the action pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

A Nassau County Custody Lawyer said the issue in this case is whether the Defendant City is entitled to their motion to dismiss for failure to state a cause of action, on the ground that no duty was owed to the infant plaintiff by the defendant.

The Court said that defendant’s motion is based on a simplistic, limited interpretation of the Order of Protection, to wit, that it was Solely for the protection of the mother and that since she “was never touched, attacked or assaulted,” it (defendant) cannot be held liable. The defendant contends “That tort liability can exist only where there has been some relationship on the part of the municipality to the (infant) plaintiff”; and that “absent special circumstances there is no duty upon a municipality to provide police protection”.

In considering a motion to dismiss for failure to state a cause of action the pleadings must be liberally construed and the allegations assumed to be true; the court assumes the most favorable view of the facts in support of the plaintiffs’ action. A motion to dismiss should not be granted unless it is very clear that there can be no relief under any of the facts alleged in the pleadings for the relief requested or other relief. And when the moving party offers matter extrinsic to the pleadings, the criterion to be applied is whether the plaintiff actually has a cause of action, not whether he has properly stated one.
“Municipalities have been held liable to a bystander negligently shot by a policeman engaged in an altercation with another; to a taxicab driver shot by a passenger negligently placed in his cab by policemen; to the estate of an arrested man who died from pneumonia caused by exposure in the jail and failure to treat a fractured hip and elbow. Negligence of the city was found in its omission to use reasonable care in training the police officer so that he could shoot straight and hit the criminal instead of his victim. None of these actions could have been brought until after the waiver of governmental immunity by section 12-a (now § 8) of the Court of Claims Act, but in each of them liability arose from negligence of a city in the exercise of the police power, and in at least two of them the negligence consisted in nonfeasance rather than in misfeasance.

The Court said that, orders of protection as embodied in the Domestic Relations Court Act, in which ‘orders of protection’ originated have certain advantages in keeping with the spirit of the sociological approach of the Children’s Court and Family Court legislation. The ‘orders of protection’ provisions of the Domestic Relations Court Act are non-criminal and non-punitive. They are rather preventive and curative in their purpose. Moreover they have the advantage, for a court of limited jurisdiction, of specifically prescribing the areas of court action and court jurisdiction. Within the framework of the Domestic Relations Court Act such orders are also readily enforceable and there for provide a form of poor man’s equity, for the act includes a provision requiring any peace officer to whom a certificate of an order of protection is exhibited to arrest the person charged with violation of the order and to aid in affording the person obtaining the order the protection which the order intended.

In its reply affirmation filed in support of the instant motion to dismiss, the defendant concedes that the key case is the decision of the Court of appeals in one case, that it is the law to be applied. The defendant then seeks to limit it to the person named in the certificate of order of protection. The defendant argues that in the said case the plaintiff was the person for whose benefit the order of protection was issued whereas in this case plaintiff, who was not injured, was the person named in the order who needed the protection, and not the victim infant. Assuming, that the defendant applies Court of Appeals decision correctly, it nevertheless overlooks the fact that in this case, there was more than one violation of the order of protection by the husband. The first violation occurred on Saturday morning, when the infant was turned over to the father, at which time he made a death threat against his wife and the infant. This constituted a violation of the order forbidding the father to menace, harass, threaten or act in a disorderly manner toward petitioner. When the infant mother immediately reported this violation to the police officers and showed the certificate of the order of protection and demanded that the police take the father into custody for the violation of the order, the police “had a duty to supply protection to her”. Had the police taken the father into custody for violating the terms of the order and brought him before the court as the certificate provided, then the tragic events of the following day, in all probability, would not have occurred. It is consequently a question of fact for the jury whether the police to whom the infant mother turned for help were negligent in discharging the duty of special protection to her. The second violation of the order of protection occurred beginning at 6:00 P.M. on Sunday, the father failed to return the infant as required by the order. Again the police were repeatedly informed of the violation, shown the order and requested to do their duty; the failure of the police to act at that time similarly presents a question of fact for the jury whether the police were negligent in so doing.

The Court does not accept the defendant’s argument that only the infant mother was entitled to the benefit of the order of protection. The “Manual For Police in the State of New York, which is “Prepared and published by the New York State Police as a service to Law Enforcement in the State of New York” recognizes the obligation and authority of a peace officer to act when a violation of an order of protection is reported to him. Notwithstanding the clear purpose and intent of the statute (FCA, sec. 168) and the duty of the police to act when a violation of an order of protection occurs, as they have been instructed throughout the state by the aforesaid “Manual for Police, etc.”, the New York City Police Department apparently has heretofore ignored the statute and has not instructed its police officers regarding the statute or their duties and responsibilities under the state law. The New York City Police Department Manual, unlike the Manual prepared by the New York State Police, is devoid of any statements, comments or instructions to New York City Police Officers with respect to violations of orders of protection. However, even assuming that the order of protection issued to the infant mother did not include nor protect the infant herein there is presented a question of fact for the jury whether the police, In light of the existing facts known to them or brought to their attention by the infant mother, were negligent in failing to take the necessary action to protect the infant plaintiff.
Accordingly, the Court held that the complaint sets forth facts sufficient to constitute a cause of action against the Defendant City. Thus, the motion to dismiss the complaint is denied.
A municipality may not be held liable for failure to provide general police protection, but there may be liability if there exists on the part of the municipality ‘some relationship creating a duty to use due cares for the benefit of particular persons or classes of persons’. If you are involved in a similar case, and the Municipality failed to provide you with police protection resulting to the harm to your child, seek the help of a Bronx Order of Protection Attorney and/or Bronx Family Attorney in order to advice you of what possible claim you may have against the Municipality. Call us at Stephen Bilkis and Associates for free consultation.

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